CRI/A/69/79 IN THE HIGH COURT OF LESOTHO
In the Appeal of:
NKO MAHLOANE Appellant
Delivered by the Honourable Mr Justice F.X. Rooney on the 29th February, 1980
The appellant has appealed to this Court against his conviction on a charge that "upon or about the
16th January, 1979 did wrongfully and unlawfully
have in his possession a firearm without a firearms certificate in force at the time and five rounds of
ammunition . .." contrary to section 3(2)(a)
of the Internal Security (Arms and Ammunition) Act 1966.
Some confusion might have been avoided if the framer of the charge had taken the trouble to describe the firearm and the ammunition by reference to make, calibre or other particulars. There was another firearm mentioned in the evidence which was also found in the possession of the accused, but, as he held a firearm certificate in respect of that weapon, it was not the subject of the charge.
The relevant evidence for the Crown can be summarized as follows. Trooper Nkomo (P.W.1) said that he and Trooper Lesibo visited the house of the accused at St Michaels at between one (1) and two (2) a.m. in the morning. There were two men in the house, the accused and Mokete Libe. The accused had a gun. The witness saw Libe throw something behind some grain bags. The house was searched and a "short gun" identified as Exhibit I was found under a bed near the grain bags. The Court noted that this gun was a pistol. The trooper could not say if the pistol was
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loaded, but, he did add that the other firearm held by the accused contained five (5) rounds of ammunition. It appeared from the cross-examination of this witness that five (5) rounds of ammunition of a smaller size than 3.7 mm calibre were before the Court, but how they came to be there is obscure.
Trooper Lesibo (P.W.7) said that he entered the house behind the first witness, Libe had in his hand something that looked as it were wrapped in plastic or paper. He threw this object behind some bags. The witness searched for the object and found "the firearm before Court Exhibit 2". He found this firearm wrapped in plastic with the muzzle and trigger exposed,
I am confused by the handling of the exhibits, but, I will assume, for the time being, that Lesibo was referring to the same pistol produced by Nkomo although this is not what the record indicates.
The witness went on to say that the accused said that the "two firearms were his" and said he had a licence for "the short gun (a big gun that loads bullets)". The record and the evidence becomes more and more difficult to understand. It goes on "accused said he had no licence for the one before Court, He explained that it was given to him by his late uncle".
Cross-examined Lesibo confirmed that the firearm he found behind the grain bags was the one thrown by Libe as the police entered.
This witness produced the pistol as exhibit I and the five (5) rounds of ammunition as Exhibit 2. He did not say from where he obtained the five (5) rounds of ammunition. His earlier reference to the firearm as Exhibit 2 must be taken as erroneous. Obviously no one in court was aware of the importance of exhibits and the necessity of handling and identifying them in such away as to avoid the type of confusion encountered here.
The appellant did not give evidence at the trial and the evidence for the Crown stands uncontradicted. Whatever view the magistrate may have taken of the
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evidence it is clear that at the trial the prosecutor asked the court to draw the inference that the object thrown by Libe was the pistol found among the grain bags. Otherwise the evidence was totally irrelevant, Libe held the pistol when the police entered and threw it away. Whether it was loaded or not was not stated. Where the ammunition came from and whether or not it fitted the pistol was not proved. The appellant admitted that the pistol had belonged to his late uncle. It was found in his house.
Mr Sello submitted that two elements were necessary
to sustain the allegation that the appellant was in possession of the pistol. There had to be both detentio and animus possidendi. He submitted that the evidence disclosed that Libe was in possession at the relevant time and the ownership could not be construed as possession. He cited the State v. Nunu 1968 (2) P.H. 618 (H. 330) in support of this contention. In that case the firearm was found in the possession of a third party although the accused was the owner. The firearm was found in the house of a relative and the accused could not be said to be in physical possession of it.
In the present instance the pistol was found in the house of the appellant. It may have been in the hands of Libe when the police came on the scene. Not only was the pistol where it was but the evidence prima facie pointed to the appellant as the owner. As there was no other evidence, it was reasonable for the magistrate to draw the inference that the appellant was in possession. The appeal against conviction must be dismissed, however, the terms of the conviction must be altered to the extent that the ammunition must be excluded in the absence of evidence as to where this was found.
Although there was no appeal against the sentence of a fine of R150 or 5 months imprisonment, it is subject to the revisional power of this Court.
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The magistrate said:-
"In passing sentence this court considers that a number of dead bodies with bullet wounds were found in and around Maseru last year. Police have difficulty in tracing the culprits because the firearms were not registered."
I do not know on what information the magistrate reached this startling conclusion, but, I cannot see the connection between these gruesome discoveries and the offence committed by the appellant.
While the possession of unlicensed firearms (particularly small arms) poses something of a problem the maximum fine, apart from imprisonment, provided in the Act is M400. The appellant's case is not the worst of its kind and he has no other convictions. I shall reduce to the penalty to one of M50. The balance of the fine paid should be refunded.
The pistol and the 5 rounds of ammunition were forfeited to the Crown under Section 39 of the Act. Forfeiture is not automatic in these cases. The appellant holds a firearm certificate for another weapon and it may be that he could obtain a certificate in respect of the pistol in this case if he were to make application for it.
I set aside the forfeiture order and direct that the pistol be retained by the police for six months from this date. If in the meantime the appellant obtains a certificate in respect of the firearm it may be returned to him. If no such certificate is issued within the period provided for in this order, the pistol shall be forfeited to the Crown.
29th February, 1980.
For Appellant: Mr Sello
For Respondent: Mr
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